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Subjective Symptoms: W.D.N.Y.

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  • Subjective Symptoms: W.D.N.Y.

    This recent case out of New York is really interesting in its discussion of subjective complaints, and how they can establish disability. The opinion is rather lengthy, so I'll highlight some of the more interesting passages below:

    In the Second Circuit, a plaintiff’s subjective complaints, if believed, can be sufficient to establish disability. See Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir. 1983) (characterizing SSDI claimant’s frequent complaints to his wife and neighbor of headaches and neck pains and his testimony about same as “overwhelming, substantial evidence” of the extent of claimant’s pain); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) (“[T]he subjective evidence of appellant’s pain, based on her own testimony and medical reports of examining physicians, is more than ample to establish her disability, if believed.”)). Indeed, “[m]any medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established until autopsy. In neither case can a disability insurer condition coverage on proof by objective indicators such as blood tests where the condition is recognized yet no such proof is possible.” Salomaa, 642 F.3d at 678. However, this is exactly what Defendant did here. Drs. Bress, Schnars, Paty and Bello relied on the lack of “laboratory data” and “objective” clinical findings to find Plaintiff’s complaints of fatigue and pain unsubstantiated. Defendant’s medical reviewers largely ignored the abnormal bone scans performed in 2006 that were suggestive of a polyarthralgia. And, they have not stated what types of laboratory results they would have expected to see in a person with Plaintiff’s disease profile and symptoms. As far as examination findings, they expected to see such things as a fatigued appearance, joint swelling and decreased range of motion, or the inability to get on the examination table. Defendant’s consultants have not pointed to any medical authority stating that swelling and decreased range of motion always occurs in cases of polyarthralgia secondary to relapsing polychrondritis. Contrary to Defendant’s suggestion, whether a patient “looks” tired is, of
    course, a wholly subjective judgment. Rheumatologist Dr. Moreland explained that there is no blood test or approved questionnaire that accurately measures fatigue, and most often his patients have normal laboratory results and examinations. Defendant’s medical experts’ opinions demanded unspecified types of objective proof that, given the nature of Plaintiff’s diagnoses and symptoms, is essentially impossible to obtain.
    The court then touches on Defendant's medical reviewers and the issue of not examining Plaintiff in person.

    Defendant’s medical reviewers’ opinions collectively constitute an unfavorable referendum on Plaintiff’s credibility,formed without the benefit of examining Plaintiff in person. The Court recognizes that while plan administrators may not arbitrarily reject or refuse to consider the opinions of a treating physician, they “are not obligated to accord special deference to the opinions of treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003). Here, given the nature of Plaintiff’s disease, any opinion as to his physical limitations necessarily had to be based in large part on his subjective sensations of fatigue and pain. A “‘special problem’” arises where, as here, “credibility determinations are at stake: if ‘the conclusions from [a non-treating physician’s] review include critical credibility determinations regarding a claimant’s medical history and symptomology, reliance on such a review may be inadequate.’” Holt v. Life Ins. Co. of N. Am., No. 1:13-CV-339, 2015 WL 1243529, at *5 (E.D. Tenn. Mar. 18, 2015) (quoting Calvert v. Firstar Fin., Inc., 409 F.3d 286, 297 n. 6 (6th Cir. 2005)). The “special problem” described in Calvert is dramatically illustrated by this case, where Defendant, despite having the authority to conduct an inperson medical examination or functional capacity evaluation, chose not to do so and instead repeatedly sought paper reviews of Plaintiff’s case. This “‘[r]aises questions about the thoroughness and accuracy of the benefits determination.’” Holt, 2015 WL 1243529, at *5 (plan administrator’s failure to invoke right to physical examination claimant, who suffered from fibromyalgia, contributed to finding that its denial of benefits was arbitrary and capricious, given nature of claimant’s illness) (quoting Calvert, 409 F.3d at 293; alteration in original)); see also Smith v. Cont’l Cas. Co., 450 F.3d 253, 263–64 (6th Cir. 2006) (holding that a non-treating physician’s characterization of the claimant’s “subjective complaint[s]” as “out of proportion to physical findings” contributed to the arbitrary nature of the plan’s denial of benefits because it involved the type of credibility determination best made by a treating physician).
    Finally, the court finds as follows:

    After reviewing the entire Administrative Record, the Court finds that no new evidence could produce a reasonable conclusion permitting a non-arbitrary denial of Plaintiff’s claim under the “Any Occupation” standard. Remand would, in this case, be a useless formality. The Court further finds that the Administrative Record establishes, by a preponderance of the evidence, that Plaintiff is unable, due to sickness or disease, to perform the material and substantial duties of any occupation and, as such, is disabled under the “Any Occupation” provision.
    The full opinion is attached below.
    Attached Files